Commentary and opinion on the illicit trade in cultural objects

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There is a lot of public money being spent these days on capacity building projects designed to help protect cultural heritage in the Middle East. I am not too convinced personally that professional training of this type translates well into cultural heritage protection, but at least some people in the area are benefiting from opportunities that were not previously available, so I can’t complain too much. What I do want to complain about is the opposite of capacity building, what I propose to call ‘capacity degrading’. What is capacity degrading? I intend it to mean reducing a national fund of professional expertise or competence in such a way as to diminish the public good – the opposite of capacity building in fact.

Let us look at Hobby Lobby again. I came across a comment published in 2014 by someone in a position to know that the Hobby Lobby collection contains an ‘enormous collection’ of cuneiform tablets, an observation that chimes well with Hobby Lobby’s own claim to possess ‘One of the largest collections of cuneiform tablets in North America’. So even after the US Customs seizures and returns Hobby Lobby will still retain a large holding of cuneiform tablets that are destined to be studied and published by members of the Green Scholars Initiative. The Green Scholars Initiative comprises ‘Scholars from 60 participating colleges, universities and seminaries around the globe’, but there is no evidence that any of them are Iraqi scholars from Iraqi universities. Similarly, we can look at the Cuneiform Library at Cornell University that holds approximately 10,000 cuneiform tablets formerly in the possession of Jonathan and Jeanette Rosen. This material is being studied and published with commendable alacrity, but again without the visible participation of any Iraqi scholars or universities.

No satisfactory account has ever been offered as to the source of all these tablets. They are widely believed to have been moved illegally out of Iraq in the years following 1990, and are now unavailable to Iraqi scholarship. Furthermore, they are being used to further the careers in Europe and North America of the next generation of cuneiform specialists, none of whom are Iraqi. So Iraq has suffered a double loss, first of the tablets themselves, and then of the intellectual or cultural capital that the tablets engender. Hopefully the next generation of Iraqi specialists is being trained elsewhere. I don’t know. Otherwise, going forward, Iraqi universities might struggle to re-establish themselves as international centres of excellence in the field of cuneiform studies, which is after all the study of Iraq’s history. There will be a long-term loss to the cultural and intellectual life of Iraq, a diminishment of the same public good that capacity building projects are intended to enhance. Thus while projects such as the British Museum’s Iraq Emergency Heritage Management Training Scheme, run in collaboration with the Iraq State Board of Antiquities and Heritage, are busy building capacity, other institutions are just as busily degrading it. Governments and their taxpayers might be excused for asking why their capacity building efforts are being undermined in this way.

Social and mainstream media are alight with speculation and anger after the release last week of an agreement between the US District Court Eastern District of New York and Hobby Lobby in answer to a complaint filed against Hobby Lobby by the Court. In short, the Court alleged that Hobby Lobby had acquired 3,450 archaeological artifacts probably from Iraq that had violated US customs regulations upon entry into the US. In the agreement, Hobby Lobby undertook to pay a $3 million forfeiture, relinquish claims to and possession of 3,599 artifacts, and implement a new antiquities policy to govern its collections. As always, Rick St. Hilaire provides a succinct summary of the case. Hobby Lobby is a US retail chain owned by the Green family. In 2009, the family established the Green Collection of objects related to biblical history and has funded the foundation and construction of the Museum of the Bible in Washington DC which will open later this year. Joel Baden and Candida Moss published a good overview in the January/February 2016 issue of the Atlantic.

Many commentators have complained that what looks to have been a large smuggling bust by US Customs was followed up with a civil complaint and fine but no criminal charges. The complaint is interesting in itself as it details the complex and evasive manoeuvres necessary to smuggle Iraqi artifacts into the US, and the roles played by a large and diverse cast of actors. Over this and the next post, I will describe the main substance of the complaint and agreement and consider some of their implications.

The inspection

According to the complaint, on 15 July 2010 the Hobby Lobby President and an individual identified as a Hobby Lobby ‘Consultant’ inspected 5,548 artifacts for prospective purchase at an undisclosed location in the United Arab Emirates (UAE). The artifacts comprised cuneiform tablets, clay bullae and cylinder seals most likely from Iraq. Also present at the meeting were two Israeli dealers (ID1 and ID2) and a UAE dealer (UAED). In August 2010 the Hobby Lobby Consultant met again with ID1 and ID2, this time in Israel, and on 23 August reported back to the President and the President’s ‘Executive Assistant’. He had been told the artifacts were the property of a third Israeli dealer (ID3) and were part of ID3’s family collection. The collection had been stored in Washington DC before being moved to the UAE for the July inspection. The Consultant advised the President that the asking price was $2,091,000 but that the material would most likely have an appraised value of $11,820,000. On 30 August 2010, ID1 supplied written confirmation of provenance from ID3 for 5,313 of the artifacts. It states that ID3’s father had legally acquired them in the 1960s from local markets and that the collection had been moved to the US for safe storage in the 1970s. (The alleged US custodian subsequently denied ever having possessed the material).

The purchase

While these negotiations were proceeding, on 9 August 2010, at the invitation of Hobby Lobby ‘In-house Counsel’, an invited legal ‘Expert’ made a presentation on relevant aspects of cultural property law to the President, In-house Counsel and Consultant. This presentation was followed up on 19 October 2010 when at the In-house Counsel’s request the outside Expert provided a memorandum detailing the risks associated with acquiring Iraqi cultural property and advising rigorous due diligence. This memorandum was received by the In-house Counsel but not shared with the President, Consultant or any other responsible officer.

On 8 December 2010 the President and ID2 signed a purchase agreement whereby Hobby Lobby agreed to pay $1,600,000 for the artifacts on offer. The associated invoice named ID3 as the seller and stated (falsely) that the artifacts originated in Israel. The President authorised wire transfers of the purchase money to seven personal bank accounts associated with five different people. The payees included ID1, ID2, UAED and two other individuals, but not ID3. Two days after the wire transfers, on 10 December, ID2 asked the President to amend the purchase agreement by replacing ID2 with ID3 as seller. The President complied on 15 December.

The first shipments

UAED starting shipping material through international post in November 2010. None of the shipping labels listed the origin or value of package contents. The shipments were as follows:

Date

Description

Number of objects

23 November 2010

Ceramic tiles

13 or 23

19 December 2010

Tiles (sample)

13-18

19 December 2010

Tiles (sample)

13-18

19 December 2010

Tiles (sample)

13-18

20 December 2010

Tiles (sample)

12-18

20 December 2010

Tiles (sample)

12-18

20 December 2010

Tiles (sample)

12-18

Shipments were processed through JFK in New York. Each package was addressed to the President and/or the ‘Executive Assistant’ at Hobby Lobby or one of its affiliates, Mardel, Inc or Crafts, Etc!. The different addresses were used at the request of UAED. The complaint states that such practice is normal for smuggling cultural property so as not to attract the attention of customs agents.

The seized shipments

On 19 January 2011 US Customs and Border Protection seized five FedEx packages despatched by UAED that had been detained at Memphis, Tennessee. Together they contained 223 cuneiform tablets and 300 clay bullae. Three more FedEx packages had previously passed through Memphis and been received by Hobby Lobby. The seized packages were all described as ‘hand made clay tiles’ with Turkey listed as country of origin:

Date

Receiving address

Contents

Declared value

Actual purchase price

3 January 2011

Mardel

50 cuneiform tablets

$250

$14,020

4 January 2011

Hobby Lobby

300 clay bullae

$300

$84,120

4 January 2011

Crafts, Etc!

54 cuneiform tablets

$285

$15,142

5 January 2011

Mardel

60 cuneiform tablets

$300

$16,824

5 January 2011

Crafts, Etc!

50 cuneiform tablets

$300

$16,544

The forfeiture complaint alleges the shipper knowingly falsified customs declarations as to value, description and country of origin.

The forfeiture agreement

On 16 May 2011 Hobby Lobby petitioned for the return of the seized material, submitting in support the provenance statement from ID3 claiming ownership of 5,513 artifacts and a further provenance statement from UAED (dated 1 May 2011) claiming ownership of 527 artifacts – the artifacts that had been seized. On 7 September 2011 Hobby Lobby further petitioned that the separate wire transfers were made to different people so that the original owners were paid directly (in apparent contradiction of the ownership claim made in the ID3 provenance statement).

In September 2011, months after the January seizures, Hobby Lobby received 1,000 clay bullae shipped by ID1 in Israel using international express post. The shipping label accurately described their contents but falsely stated country of origin to be Israel. (If these bullae were amongst those inspected in the UAE in July 2010, they must subsequently have been shipped back to Israel).

On the 5 July 2017 the US District Court Eastern District of New York filed the forfeiture complaint against ‘Approximately four hundred fifty (450) ancient cuneiform tablets; and approximately three thousand (3,000) ancient clay bullae’. The following day (6 July), the court filed the settlement agreement. Rick St. Hilaire has both documents on his blog. The main talking points of the settlement agreement are that:

Hobby Lobby agrees forfeiture of 3,000 bullae and 450 cuneiform tablets, together with a further 144 cylinder seals;

Hobby Lobby agrees forfeiture of $3 million;

Hobby Lobby agrees to implement an internal antiquities policy to govern its collection and future acquisitions of cultural property in compliance with either the Association of Art Museum Directors (AAMD) Guidelines on the Acquisition of Archaeological material and Ancient Art (2013) or its Protocols for Safe Havens for Works of Cultural significance from Countries in Crisis. The policy also provides for training of responsible personnel (including a qualified customs broker) in customs regulations and procedures and the legal and ethical requirements of acquiring cultural property.

Many commentators are angry that no criminal charges have yet been brought against any of the actors involved in the Hobby Lobby case. But it seems a fair question to ask ‘what was the crime?’. The assumption is that the material in question was moved out of Iraq illegally, an act that in the US would most likely constitute theft. The situation in Israel or the UAE, which are other possible jurisdictions, is not clear. (Not clear to me at least). In any event, there is no evidence contained in the complaint to prove illegal export after 1936, the year Iraq took all undiscovered artifacts into state ownership.

The acquisition might also be in contravention of United Nations Security Council Resolution 661, adopted on 6 August 1990, in force in the US since then and implemented more specifically for cultural property on 30 April 2008 as the Import Restrictions Imposed on Archaeological and Ethnological Material of Iraq. Under these trade controls, only objects that can be documented as having left Iraq prior to 6 August 1990 can be legally imported. Unless proven false, the statement of provenance supplied by ID3 acts to supply such documentation.

The role of ID3 in the transaction is interesting. This person supplied the document claiming ownership of 5,313 artifacts that had been in the family collection since the 1960s. If the artifacts are ever shown to have been stolen from Iraq, ID3 would be in the position of having admitted possession of stolen property and supplying a false statement in defence of that possession. Yet ID3 was not a direct recipient of any of the money wire-transferred by Hobby Lobby. Who is ID3? An identifiable person? Is whoever it is a convenient front for other dealers, paid by them to face prosecution if evidence of criminal wrongdoing ever does come to light? But what if ID3 never was in possession of stolen property? What is the offence then? Has ID3 now disappeared, leaving a phoney paper trail in his (or her) wake?

Hobby Lobby wire-transferred money to ID1, ID2, UAED and two other unnamed individuals. Assuming for the moment that the purchased material was stolen and trafficked from Iraq sometime during the 1990s or 2000s, which seems most likely, these five people must be the principal actors in what was an organised criminal conspiracy, moving stolen property through a complicated operation of smoke and mirrors, with at least one paid scapegoat, warehousing facilities, access to material moving out of Iraq, and thus presumably from other countries too.

The Israel Antiquities Authority (IAA) has established that during the years 2002-2012 artifacts from throughout the Middle East were being smuggled through the UAE via London or another European country to Israel, where they could be sold legally as non-Israeli cultural property and receive a valid Israeli export licence. The IAA successfully lobbied for a change in Israeli customs law enacted in 2012 that now requires all imported cultural objects to be accompanied by legitimate export documentation from the appropriate country of origin. The IAA believes this new law has ended the trade through the UAE to Israel. The conspiracy documented here between two Israeli dealers, a UAE dealer, and two other unnamed individuals looks to have been part of this larger operation, with the material shipped directly to the US instead of through London to Israel. The IAA’s knowledge of this operation suggests it would have relevant information about the various actors, but not that any offence would have been committed inside Israel itself. Perhaps the relevant jurisdiction for a criminal prosecution would be the UAE, provided the present whereabouts of the potential offenders are known, which again is not certain. Perhaps a joint investigation between Israel, Iraq, the UAE and the US would result in some convictions, but such collaboration seems highly unlikely in the present political circumstances. In other words, the likely perpetrators of any criminal acts involved in acquiring and selling Iraqi artifacts to Hobby Lobby seem safely immune from any law enforcement response.

Individual innocence but collective guilt?

What about Hobby Lobby? If the acquired artifacts could be shown to have been stolen from Iraq (which again I emphasise has not yet happened), would the President or any other officer or employee of Hobby Lobby be guilty of receiving stolen property? From what is known, the answer is likely no. As a hypothetical, two things look to insulate the President from any knowledge or understanding that the acquired material was stolen. First, there is the provenance document from ID3, which documents the material outside of Iraq since the 1960s or earlier and also demonstrates at least a minimum exercise of due diligence on the part of Hobby Lobby. Second, there was the unexplained and perhaps even derelict decision of the In-house Counsel not to communicate to the President the warnings of the outside legal Expert. Perhaps the President should have been more active in investigating provenance himself. The judge in the Frederick Schultz case ruled that conscious avoidance of knowledge is no defence, but that ruling was made with regard to Schultz, who was an experienced and knowledgeable antiquities dealer. In 2010 the Hobby Lobby President was anything but an experienced antiquities dealer, and it would be easier to construe any inaction on his part as arising out of a naïve reliance upon the expertise of those around him rather than as conscious avoidance of knowledge.

What about those around him? The failure of In-house Counsel to communicate the warnings of the outside Expert remains inexplicable and not much more can be said about it, although he or she never took possession of any material. The role of the Consultant is more interesting though. The Consultant was being paid by Hobby Lobby for his or her expertise, and Hobby Lobby might legitimately expect that expertise to include knowledge of the legal requirements of acquiring Iraqi cultural property and the necessary due diligence when making such an acquisition. The Consultant of course was not acquiring the material for himself, simply offering what turned out to be bad advice, bad advice that ultimately cost Hobby Lobby $3 million. It will be interesting to see whether Hobby Lobby tries through civil action to recover some of that money from the Consultant. But the emerging picture of the Hobby Lobby acquisition is one of individual decisions building towards a collective or institutional decision to acquire what still might prove to be stolen material. It has all the hallmarks of a sophisticated white-collar operation aimed at separating dishonest action from intent, but might instead just be the work of a bunch of bumblers. In this case, it does look to have been the work of a bunch of bumblers – innocent bumblers. Going forward, the agreement quite rightly stipulates the need for a training-backed acquisitions policy. One not so obvious consequence of this stipulation is that the bumblers defence will no longer apply.

Should we be thinking about tax?

Rick St. Hilaire emphasises that the $3 million forfeiture is exactly what it says it is – a forfeiture and not a fine. Forfeitable proceeds generated by the customs violations. Rick cannot identify the source of those proceeds, but talk of proceeds does inevitably turn the mind to thoughts of tax. Commenting on the agreement, a spokesperson for the Museum of the Bible denied the museum had anything to do with the case, thereby drawing attention to what might be a significant material separation between the Green Collection and the Museum of the Bible. The Green Collection was established in 2009 and by 2010 was said to be using Hobby Lobby money for acquisitions, a fact confirmed in the July complaint being discussed here. Hobby Lobby is a for-profit corporation. The Museum of the Bible was established as a non-profit in 2010. It claims on its website to hold thousands of objects under agreement with the Green Collection, though does not ay on what terms. So, the question almost asks itself: what exactly is the nature of the agreement under which the non-profit museum holds material from the for-profit corporation. Could there possibly be a tax consideration in there for Hobby Lobby, and is that what is reflected in the $3 million forfeiture? Rick is certainly thinking that way.

A final thought

Finally, it is worth reflecting on Hobby Lobby’s commitment to implementing an antiquities policy in accordance with the AAMD’s Guidelines on the Acquisition of Archaeological Material and Ancient Art. Guideline III(G) requires that a museum should:

promptly publish acquisitions of archaeological materials and ancient art, in electronic form, including an image of the Work (or representative images in the case of groups of objects) and its provenance, thus making this information readily available to all interested parties.

Guideline III(H) requires for objects acquired without a documented pre-1970 provenance that a museum must:

post on the AAMD object registry an image of the Work (or representative images in the case of groups of objects) and its provenance as well as an explanation of why the acquisition of the Work is consistent with Section F above.

The Green Collection used to claim to possess ‘One of the largest collections of cuneiform tablets in North America’, ‘An array of biblical, classical, and documentary texts on papyrus including several previously unpublished New Testament fragments’, and ‘The second-largest private collection of Dead Sea Scroll fragments, all of which are unpublished’. That is a lot of material with potentially dubious provenances. Will the AAMD registry be up to the task, or will Hobby Lobby be forced to construct its own registry? We must wait and see.